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A New York federal judge who declared the District of
Columbia’s gun regulations unconstitutional
should never have been assigned to the case, lawyers for
the city argue. The fight over U.S. District Judge
Frederick Scullin Jr.’s special assignment in
Washington threatens to derail the litigation in a
federal appeals court.
Scullin, who sits in the federal district court in
Syracuse, was assigned to Wrenn v. District of
Columbia through a quirk of federal court procedure. In
2011, Scullin was specially approved
to preside in an earlier D.C. gun case, Palmer v.
District of Columbia. When Wrenn was filed in February,
lawyers for the challengers marked the two cases as
“related,†which automatically sent the new
case to Scullin’s docket.
Scullin declared the gun regulations challenged in Wrenn
unconstitutional in May. As the District appeals
that order, the U.S. Court of Appeals for the D.C.
Circuit is taking a closer look at whether Scullin should have
been assigned to Wrenn at all. Last month, the appeals
court, unprompted, asked lawyers on both sides to
address the issue
<http://pdfserver.amlaw.com/nlj/DC%20Circuit%20order%20Scullin.pd\
f> .
The D.C. attorney general’s office argued in court
papers last week
<http://pdfserver.amlaw.com/nlj/Appellant%20supplemental%20brief%\
20Scullin.pdf> that Scullin was never authorized to hear
Wrenn, making his decision invalid. Lawyers for the
challengers, led by Second Amendment litigator
Alan Gura of Gura & Possessky, defended Scullin’s
assignment
<http://pdfserver.amlaw.com/nlj/Appellee%20supplemental%20brief%2\
0Scullin.pdf> . Gura said that the order authorizing
Scullin to hear Palmer carried over to Wrenn.
“There’s no precedent that holds judges appointed
for particular cases are barred from related
cases,†Gura said in an email to the NLJ. “That
wouldn’t make senseâ€â€among the
‘judicial duties’ that come with handling a case
is the obligation to take related matters when the
dispute spills over into a different docket
number.â€Â
Lawyers for the District acknowledge that they didn’t
earlier challenge Scullin’s assignment. They
wrote that they “assumed that Judge Scullin had been
properly designated†under federal court rules.
A spokesman for the attorney general’s office
declined to comment. In court papers, lawyers for
the city wrote that a visiting judge was only allowed to
hear a case if the chief judge of the federal circuit
involvedâ€â€in this case, the D.C.
Circuitâ€â€said the assignment was necessary and the judge was
explicitly authorized to serve by the chief justice of
the United States. That did not happen in Wrenn,
D.C. contends.
Even if Palmer and Wrenn were related, the
city’s lawyers wrote, a visiting judge’s
designation to preside in a particular case did not carry
over.
Scullin, who was confirmed to the U.S. District Court for
the Northern District of New York in 1991 and
took senior status in 2006, declined to comment.
What the Supreme Court said, in 1937
Federal courts routinely accept help from judges in other
districts. Visiting judges closed more than 3,000
cases in U.S. district courts in 2014, according to
the federal judiciary
<http://www.uscourts.gov/statistics-reports/federal-bench-2014-an\
nual-report-2014> . But the situation in Wrennâ€â€a visiting
judge assigned to a case because of its relation to a different
case, absent an explicit designation by the chief
justiceâ€â€appears to be rare.
The D.C. Circuit asked the lawyers to address Frad v.
Kelly, the 1937 U.S. Supreme Court case. In Frad,
an Eastern District of New York judge was
assigned to the Southern District of New York for a set period
of time. After his designation expired, the judge issued
an order in a case that had been assigned to him
in the Southern District. The Supreme Court declared that
order invalid. The District’s lawyers said Frad
supported their argument that Scullin had no
authority to hear Wrenn.
Gura said the Frad decision didn’t undermine
Scullin’s right to handle Wrenn because it
was part of his “judicial duties†under his
designation to hear Palmer.
Palmer was one of 10 cases assigned to Scullin in
the D.C. federal district court in July 2011. In a
previous interview with the NLJ, U.S. District Judge Royce
Lamberth, who was chief judge in 2011, said Scullin was
one of several judges from across the country who
agreed to take cases in D.C. while the court dealt with a
crush of cases filed by detainees at the U.S. military
facility in Guantánamo Bay, Cuba. The court
also had vacant seats at the time.
Palmer challenged the city’s ban on the
public carrying of handguns for self-defense. Scullin
declared the ban unconstitutional
<http://www.nationallawjournal.com/legaltimes/blog-of-legal-times\
/id=1202664799402/Judge-Voids-DC-Ban-on-Carrying-Firearms-in-Publ\
ic%3Fmcode=1383246464404&curindex=0> in July 2014. In response
to Scullin’s ruling, rather than pursue an
appeal, the D.C. Council adopted new regulations for
licensing individuals to carry firearms, but did not ban
concealed carrying outright. Gura, who represented the
challengers in Palmer, challenged the new
regulations as unconstitutional under the Second
Amendment in Wrenn.
When he filed the lawsuit in February, Gura also filed a
notice that the case was “related†to
Palmer. Wrenn met two of the five possible
criteria for being a related case, according to Gura: Wrenn
involved “common issues of fact†and grew
“out of the same event or transaction.â€Â
Even if Scullin were not properly designated to hear
Wrenn, it shouldn’t undo his order, Gura
argued in court papers in the D.C. Circuit. Scullin
properly exercised the jurisdiction of the D.C. court,
even if he wasn’t technically designated to
preside in that particular case, Gura wrote, invoking the “de
facto doctrine.â€Â
Lawyers for the District said Scullin’s assignment to
Wrenn was “not a ‘mere
technicality’â€â€it strikes at the very heart of the assignment
statute, and is thus jurisdictional and not subject to
the de facto officer doctrine.â€Â
The D.C. Circuit has schedueled arguments for Nov. 20.
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